Posted
by
Soulskillon Monday June 21, 2010 @05:47PM
from the judicial-patience-waning dept.

NewYorkCountryLawyer writes "There has been another odd development in the Jammie Thomas-Rassett case. You may recall that after the judge reduced the RIAA's verdict from $1.92 million to $54,000 on the grounds that $54,000 was the maximum amount a jury could reasonably award, the RIAA opted for a third trial instead of allowing judgment to be entered. Its reasoning in making that call has never been clear, since there seemed little point in spending hundreds of thousands of dollars on a trial which could produce no more than a judgment for $54,000 or less. Apparently the court thinks taxpayers' money could be better spent, and has appointed a 'Special Master' to bring about 'meaningful settlement discussions,' with the Master's $400-per-hour fee to be paid by the RIAA. One commentator suggests the RIAA should at this juncture just say, 'Thanks Jammie, we've had all we can get out of you and caused you enough grief — pay us $1 and we'll forget about it.' Actually doing that would be a lot less costly and more reasonable that what they appear to have in mind."

'Thanks Jammie, we've had all we can get out of you and caused you enough grief — pay us $1 and we'll forget about it.' Actually doing that would be a lot less costly and more reasonable that what they appear to have in mind."

Reason, and reasonableness, has never been a part of their campaign from the beginning.

They would rather have a ridiculous sum in judgement than to seek the reasonable. A reasonable verdict is what they want to avoid because if we start seeing reasonable verdicts, the headlines go away, and the lawyers' gravy train ends.

Reason, and reasonableness, has never been a part of their campaign from the beginning.

That is because, as I'm sure you figured out, this is a jihad or religious war to them, and they must win at all cost. They're trying to bend AN ENTIRE WORLD to their will and way of thinking, and they can't afford to lose such a pivotal early skirmish. To them the Jammie Thomas case must appear to be the Battle of Gettysburg, they being the Confederates, and they're trying to achieve a less disastrous outcome for themselves.

"Its reasoning in making that call has never been clear, since there seemed little point in spending hundreds of thousands of dollars on a trial which could produce no more than a judgment for $54,000 or less."

Just because the word is overused in other contexts doesn't make the analogy any less appropriate here, so... no, we can't. I didn't simply spit the word out there by itself. A jihad is rooted in ideology, just as was the Civil War and is the RIAA's campaign.

They didn't take a gamble on the moral rightness of copyright. They won that bit, the court decided that this woman did in fact infringe on copyright(and let's be honest, she did).

The gamble they took was that the patently ludicrous multi-million dollar penalties they lobbied for would stand up in court when used against some dumb schmuck who wasn't sharing for profit. They lost that gamble, and they lost big time.

One of the consequences of this is that they've basically lost nearly all of their ability to actually frighten pirates. Given your the abysmally small chance you have of getting caught and how difficult it is to prove that you were sharing any substantial number of songs, 54 grand is, to most people, an acceptable risk. Most people could arrange a payment schedule for that and wouldn't even need to declare bankruptcy. It would suck, but it wouldn't be the end of the world, and you've got a slightly higher chance of getting struck by lightning than sued for copyright infringement, even if you're the biggest pirate in the world, and the lightning strike would probably cost you more.

The other consequence of this is that they're pretty much guaranteed to lose money on any future cases affected by this precedent. By the time you pay the investigators, file the paperwork, pay the lawyers, and all the other costs associated with something like this, you'd be lucky to break even at that kind of judgement. That's not even counting bad publicity.

So if you can't scare people, and the process loses you money, what do you do? They've gone too far down this path to turn back and try to fight this another way, and they can't really ignore the threat to their business model.

Law enforcement is always difficult for instances where the chance of getting caught is incredibly low. If you pile on the penalties you start looking like jack booted thugs, and if you give a fair penalty, there is no deterrent.

Remember, the expenses incurred by the RIAA in these and other similarly insane actions are by and large tax-deductible business expenses. In other words, the American taxpayer is footing the bill through reduced tax revenue and corresponding loss of services and/or increased taxes elsewhere.

I'd think that would inspire a few people to figure "Hell, I've got nothing left to loose. Might as well kill a few of the bastards."

I could be wrong, but I believe that recent research has shown that some fraction of people figure that if they've been done wrong, they don't care WHAT it costs them to get even. (Mind you, there'd been plenty of historical examples even before the recent academic research, so I found it convincing without checking into the details.)

That is because, as I'm sure you figured out, this is a jihad or religious war to them, and they must win at all cost. They're trying to bend AN ENTIRE WORLD to their will and way of thinking, and they can't afford to lose such a pivotal early skirmish.

I'm no lawyer, but it seems to me that their main motivation in going straight to a third trial is nothing to do with this payout, and everything to do with avoiding a precedent. If they 'won' this case with a payout of $54k, substantially less than the cost of the trial, they've basically destroyed the financial justification for all similar such copyright infringement trials. They're not just fighting for this one guy's money, they're fighting this lawsuit for the collective payouts of all future trials where the defendant could pay more than $54,000. With that in mind, it's perfectly reasonable for them to spend half a million dollars on a retrial.

I believe this is one of the rare moments where NYCL has missed the point. In fact, the only one I've ever seen now that I think about it..

This isn't about money. Here, read this bit again:

One commentator suggests the RIAA should at this juncture just say, 'Thanks Jammie, we've had all we can get out of you and caused you enough grief -- pay us $1 and we'll forget about it.' Actually doing that would be a lot less costly and more reasonable that what they appear to have in mind.

It's right there if you read it a second time. "...more reasonable that what they appear to have in mind."

They are not out to be reasonable. What they wish to do is to rob this poor woman not of her money but of her time, her life. One minute at a time, whatever the cost. They don't want to bankrupt her. They don't want $54,000. They want to make an example out of her. Doesn't matter if they have to spend hundreds of thousands to drag this thing out. The money isn't the point. The entire music industry is balanced on the head of a pin and these people are just that terrified that the gravy train is coming to an end. It is fear and wild reaction on a level that is hard to understand. That's why the response seems unreasonable. Because it is. On purpose. The modern day legal equivalent of these guys. [wikipedia.org]

It has taken me 40 years on this planet to eventually figure out the fact that some people simply do not think in a reasonable fashion. It's hard when you base your life on rationality to think in an irrational manner. You see someone doing something you cannot understand and you apply your own yardsticks to it. And fail, because nothing you can come up with fits.

These people have different motives than I could ever have - it is alien thinking. But once you know that people differ wildly from each other, you know that some people will simply be unfathomable. This is one of those times.

Hang on there folks. When you suggest piracy is immoral, I have to disagree. Less immoral than what the industry does, yes. But that's because it's not at all immoral. "Piracy" is a loaded term. We should be calling it "sharing". Copying is no more immoral than borrowing a book from the library. It's certainly less costly.

There is nothing holy about copyright. Copyright is only a system that attempts to funnel the fairest amount of compensation possible to the originators of art and science, in order to encourage same. It fails dismally on all points. And it's not even good capitalism, as it is based on handing out completely artificial monopolies. Definitely anti-competitive. Other systems could hardly do worse.

Not only should we try other systems, we must. Their business model is toast. Copying immense quantities of data quickly is stunningly easy and cheap today. And it can be as private and anonymous as the participants wish, though mostly people don't bother. Don't need to. It will only get easier and cheaper. These media control freaks are not going to get their way and actually force all humanity to switch to crippled devices that all obey DRM.

The American taxpayers are also footing the bill on the cost of court times, judges, juries, building maintance costs (electric, water, oil/gas, telecommunications, etc., etc.). As much as I hate to say it, the system needs to change some, like for civil cases involving corporations, if the corporation is the party instigating the civil suite, they are required to pay the court fees in a case unless they win. This has a two fold effect, firstly, reducing the taxpayer burden on the local taxpayers, and decrees the number of cases taken to court due to the added risk involved with stupid cases being brought about.